Volume 8 | Issue 2
Article 3
1962
The Grievance Procedure and the Supreme Court:
A Theory of Collective Bargaining
Robert V. Nally
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Robert V. Nally, The Grievance Procedure and the Supreme Court: A Theory of Collective Bargaining, 8 Vill. L. Rev. 177 (1962).
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Nally: The Grievance Procedure and the Supreme Court: A Theory of Collec
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THE GRIEVANCE PROCEDURE AND THE SUPREME
COURT: A THEORY OF COLLECTIVE BARGAINING
ROBERT
V.
NALLYt
LABOR
ARBITRATION as the final step of a grievance procedure
has been defined by the United States Supreme Court and distinguished from commercial arbitration in regard to nature and purpose:
In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife.
Since arbitration of labor disputes has quite different functions
from arbitration under an ordinary commercial agreement, the
hostility evinced by the courts toward arbitration of commercial
agreements has no place here. For arbitration of labor disputes
under collective bargaining agreements is part and parcel of the
collective bargaining process itself.'
This view of labor arbitration has not, however, received unanimous endorsement by the Court. In a dissenting opinion Mr. Justice
Whittaker stated:
This is an entirely new and strange doctrine to me. I suggest,
with deference, that it departs both from the contract of the parties
and the controlling decisions of this Court. I find nothing in the
contract that purports to confer upon arbitrators any such general
breadth of private judicial power. The Court cites no legislation
or judicial authority that creates for or gives to arbitrators such
broad general powers.'
A full investigation of this disagreement concerning labor arbitration and the grievance procedure appears to be in order. Lawyers
and industrial relations people have differed substantially over this
matter for a number of years. The existence of several views regarding
the fundamental nature, purpose, and function of collective bargaining
itself carries the seed of this dispute. It is thus proposed that the
major theories of collective bargaining be identified and defined; that
t Assistant Professor of Industrial Administration, Villanova University; A.B.,
1950, St. Francis College; LL.B., 1954, George Washington University; M.B.A.,
1961, University of Pennsylvania.
1. United Steelworkers of America v. Warrior and Gulf Navigation Co., 363
U.S. 574, 578 (1960).
2. Id. at 589.
(177)
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the general nature of the grievance procedure be presented; that critical
issues in the grievance procedure be noted and discussed; and, that
a complete framework of reference for the grievance procedure and
grievance arbitration be ascertained for each theory by analyzing all
of the positions on the various critical issues. This will reflect the full
nature of the controversy and will also serve to identify the theory of
collective bargaining adopted by the United States Supreme Court.
THEORIES OF COLLECTIVE BARGAINING
The intrinsic nature of collective bargaining is not a matter of
universal agreement. The retained rights doctrine holds that before
the advent of collective bargaining, the nature of the employee-employer
relationship vested all rights regarding the composition and direction
of the work force exclusively in management; that the negotiation and
execution of a written labor-management agreement results in a loss
of some of the traditional and inherent rights of management; and that
all matters not taken away by collective bargaining and set forth in
the agreement are retained by management to be unilaterally exercised.
Thus the retained rights doctrine is fundamentally an approach that
views the historical exercise of authority by management to be inherent
in the nature of our economic system, and concludes that collective bargaining does not and cannot destroy this basic vestiture of authority,
but is rather a circumstance within this framework.3
Another approach stresses two types of property rights. These
include the property rights of a worker in the ownership of his personal services, and the property rights of an employer in the ownership
of the physical and other assets of the business. Collective bargaining
is conceived as a process in which inherent property rights of workers
regarding the use of their personal services, and inherent property rights
of employers regarding the operation of the firm and composition of
the force, are mutually recognized and voluntarily restricted through
the codetermination of terms and conditions of employment. Major
areas of codetermination are set forth in the written labor-management
agreement. Matters not submitted to codetermination are retained by
each respective property owner.4
Within the context of these two philosophical bases, there are a
number of theories of collective bargaining. These have been classified
3. James C. Phelps, "Management's Reserved Rights: An Industry View,"
Management Rights and the Arbitration Process, ed. Jean T. McKelvy (Washington:
BNA Incorporated, 1956), pp. 102-117.
4. Arthur J. Goldberg, "Management's Reserved Rights: A Labor View,"
Management Rights and the Arbitration Process, ed. Jean T. McKelvey (Washington:
BNA Incorporated, 1956), pp. 118-129.
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as the marketing theory, which stresses collective bargaining as a means
of contracting for the purchase and sale of labor; the government
theory, which stresses the industrial self-government aspects of collective bargaining; and the management theory, which stresses a
method of efficient management within the context of collective
bargaining.5
THE MARKETING THEORY
The marketing theory represents the general approach of many
firms to collective bargaining. Under this theory the union is regarded
as an institution with separate and distinct interests from the memberworkers. The interests of the workers and the firm are not considered
to be in discord, but the basic interests of the union and management
are in conflict. The retained rights doctrine is followed with management seeking to restrict the subject matter of collective bargaining
and preserve traditional managerial rights from the conflicting union
interests. Further, collective bargaining is conceived as essentially a
commercial relationship, a means of contracting for the sale of labor
with the final terms and conditions of employment specifically set forth
in a labor contract.
The marketing theory is thus based primarily on the retained
rights doctrine and the commercial nature of collective bargaining.
Accordingly, it concludes that collective bargaining introduces certain
specific restrictions on managerial unilateral authority and discretion,
and management retains all powers, rights, and privileges not specifically given away or restricted by the labor contract. It is further held
that since the labor contract is basically a commercial contract, the same
objective rules which apply to the interpretation of commercial contracts
are applicable, and the solution of all disputes within the relationship
must be derived from the terms and nature of the agreement. This
theory also maintains that management has an obligation to restrict
the subject matter of collective bargaining and preserve the essential
rights of management, and that collective contracts are treaties of peace
in the economic struggle, rather than instruments for effectuating
mutually beneficial union-management relations.
Thus this theory in practice results in a power struggle over
union security and management rights. In its highest form this theory
affirms belief in collective bargaining and advocates meeting all legal
requirements in regard to procedures and subject matter. Support of
collective bargaining is based on its assurance of a position of equality
of bargaining power on the part of workers in the sale of their services.
5.
CHAMBERLAIN,
COLLECTIVE BARGAINING
120-139 (1951).
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Gradations of this theory are reflected in differences over the specific
6
rights of management to be preserved.
THE GOVERNMENT THEORY
The government theory reflects the concept of collective bargaining followed by many unions. This theory stresses the recognition,
agreement, and enforcement of respective rights and duties of the parties
through collective bargaining as a system of self-government in industry.
Under this theory the governmental process is conducted through
management representing the owners of the firm and the union representing the employees. It is a tripartite system of industrial self-government. The legislative process is intermingled in the negotiation of a
collective bargaining agreement, and the supplementing agreements are
reached through shop and grievance committees; the executive function
is performed by management in the day-to-day administration of the
collective bargaining agreement supported by the management rights
clause and the right of administrative initiative; and, the judicial
process is performed through the grievance procedure with arbitration
as the final step. Thus there are both legislative and judicial aspects in
a grievance procedure.
Collective bargaining is also stressed as an institution which by
its nature is the exclusion of all other systems of employee-employer
relations. The union is exclusive bargaining agent for all employees
within an appropriate unit of bargaining. Accordingly, all workers
within the bargaining unit are sought to be made citizens of this governmental system through the adoption of a union security clause.
This is then a guarantee to the union of permanent acceptance of the
system, and a prerequisite to the responsible and fruitful development
of the relationship.
The retained rights doctrine is rejected as the basis of the bargaining relationship. The collective bargaining agreement is treated as
a contract by legal authorities, but the parties regard it as basically a
document to be administered in accordance with the needs of both
parties.
Thus in practice this theory results in a dual loyalty on the part
of workers, with management recognizing the need for full acceptance
of collective bargaining before responsible harmonious relations can
develop. Management seeks to assure this by agreeing to union security,
and working through the union on employee problems. The union in
sharing with management the power to determine employment terms
6. DAVEY, CONTEMPORARY COLLECTIVE BARGAINING 159-161 (2d ed. 1959).
CHAMBERLAIN, COLLECTIVE BARGAINING, op. cit. supra note 5, at 121-125.
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assumes the responsibility of exercising this role in a manner that is
genuinely representative of the interests of the employees and not
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fundamentally detrimental to the employer.
THE MANAGEMENT
THEORY
The management theory emphasizes the multiple obligations of
management. It stresses that management has a primary responsibility
to stockholders to make a profit, a responsibility to employees to insure
sound industrial relations, and a responsibility to customers to sell a
satisfactory product at a just price. The retention of maximum unilateral authority in management and adherence to the retained rights
doctrine are rejected as necessary for the fulfillment of these multiple
obligations. Collective bargaining is recognized as an instrumentality
or method of management which can contribute toward higher productivity and thus enable a firm to meet its primary responsibility to the
shareholders while keeping its employee and customer responsibilities
in a functional relationship.
It is recognized that a firm cannot consider this approach until
it is convinced of the efficacy of collective bargaining, and also, that a
union cannot adopt a cooperative attitude toward management problems
until it is convinced that collective bargaining has been permanently
accepted. Thus both an understanding and faith in collective bargaining
on the part of management, and union security for the union, are prerequisites to the adoption of this theory. This theory does not include
the surrender of all management decision-making power to codetermination. There is not an automatic acceptance of an expanding scope
of collective bargaining as a contribution to constructive relations.
Instead, the relative merits of each situation are controlling, with the
exercise of relative economic power accepted as the device for settling
disputes in this area. Moreover, it is held that management must
always have the right to manage if operational efficiency is to be
maintained; but the vital area for the exclusive exercise of managerial
authority is the day-to-day administration of affairs, not policy making.
This theory amounts to the adaption of the codetermination aspects
of the government theory within a framework of management decisionmaking. The collective bargaining agreement is viewed as a policy
statement and a set of operating procedures developed to meet mutual
objectives. It is a tool and guide in areas of management decisionmaking. The terms of the agreement are followed and applied primarily
7. 12 Am. EcoN. REv. 56-79 (1922) ; Also, CHAMBERLAIN, COLLEcTIvE BARGAINING,
op. cit. supra note 5, at 125-130.
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in the light of the mutual objectives of the parties, rather than strictly
on the basis of contract law. 8
THE GRIEVANCE PROCEDURE
The three identified theories of collective bargaining reflect substantially different views on the nature of the institution and the labor
agreement. All recognize, however, the contractual nature of a collective bargaining agreement, and they endeavor to alleviate disputes in
the employment relationship through collective bargaining. Moreover,
after a union and an employer have agreed upon the general terms
which shall cover their relationship (by negotiating and signing a
labor management agreement), there remain areas of potential differences. The parties can disagree over matters which were not covered
in the basic agreement, and which call for either a general or an individual solution.9 These disputes over subject matter not included in
the agreement, but of concern to either or both parties, are known as
disputes over interests.1 ° The parties can also disagree over the proper
application of the general terms to particular situations, and the interpretation of the terms set forth in the agreement.11 These are known as
disputes over rights,' 2 and are generally called grievances. 3 Labor
arbitration 4 is used as a process for settling disputes over both interests
and rights. Disputes over interests are submitted to arbitration by
either an ad hoc or standing arrangement of the parties.' 5 Arbitration
of disputes over rights is generally provided in a grievance procedure.
The grievance procedure as specifically set forth in the agreement
usually takes the form of several levels of negotiation commonly known
as steps, beginning with activity between union stewards and foremen,
and ending with meetings between top management and union officials.
Throughout the steps of a grievance procedure each side seeks to es8. DAVEY,
161-162. Also,
130-136.
CONTEMPORARY
CHAMBERLAIN,
COLLECTIVE
COLLECTIVE
BARGAINING,
BARGAINING,
op. cit. supra note 6 at
op.
cit. supra note 5 at
9.
CHAMBERLAIN, COLLECTIVE BARGAINING, op. cit. supra note 5 at 96.
10. American Arbitration Association, Labor Arbitration Procedures and Techniques 6 (1957).
11. CHAMBERLAIN, COLLECTIVE BARGAINING, op. cit. supra note 5 at 96.
12. American Arbitration Association, Labor Arbitration Procedures and Tech-
niques, op. cit. supra note 10 at 6.
13. The origin of this term is not definite. It appears to have gained use through
the establishment of boards of grievances in the clothing industry in the early part of
this century.
14. Arbitration is defined as the reference of a dispute to an impartial person
for final and binding determination. Voluntary arbitration exists when the parties
themselves agree to this procedure for settlement; compulsory arbitration occurs when
the law requires it. The arbitration process is thus basically a judicial proceeding and
different in nature from mediation and conciliation where the third party does not
have authority to render a decision.
15. WITTE, HISTORICAL SURVEY Or LABOR ARBITRATION 1 (1952).
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tablish its position and compromises are also attempted. When a
grievance remains unsettled after full negotiation, ninety per cent of
the collective bargaining agreements today provide for impartial arbitration, consisting of a hearing coupled with a subsequent binding
decision. At each step of the grievance procedure, designated representatives of the employer and union participate. 6
The final step of a grievance procedure, requiring that unresolved
disputes arising out of or relating to the collective bargaining agreement
be finally determined by arbitration, is called an arbitration clause.
When the parties are subject to an arbitration clause either party may
initiate arbitration by serving notice upon the other of his intention,
and such notice is called a demand for arbitration. After hearing arguments and taking testimony from both sides, an arbitrator reaches his
decision, which is called an award and is usually accompanied by a
written opinion in which the arbitrator sets forth the reasons supporting
his conclusions.'
7
There are two basic methods for selecting arbitrators in labor
dispute cases: agreement upon the use of a permanent arbitrator, and
the ad hoc method. Under the permanent arbitrator system one person
is selected to serve in all disputes which go to arbitration. Under the
ad hoc method, a separate arbitrator is appointed for each group or
groups of issues to be arbitrated by the parties. A number of collective
bargaining agreements provide for a board of arbitration rather than
a single arbitrator. Usually these boards consist of one or more members appointed by the union and by management, and an impartial
arbitrator appointed by both. Generally a decision by a majority of
such a board constitutes a valid award. 8
The grievance procedure reflects an effort on the part of the participants to voluntarily restrict their use of relative economic power.
Historically, as the written labor management agreement signed for a
given period of time came into use, there developed with it an appreciation that the process of adjustment under the agreement was fundamentally different from the process of agreement making. The use of
relative economic power -
the strike and the lockout -
to bring
about a written agreement was acceptable to the parties, but having
reached an agreement, they were reluctant to continue this contest of
strength to apply the agreement. This situation gave impetus to the
development of the grievance procedure and arbitration to handle the
disputes concerning the day-to-day application and interpretation of
16. TORFF, COLLECTIVE BARGAINING: NEGOTIATIONS AND AGREEMENTS 292 (1953).
17. American Arbitration Association, Labor Arbitration Procedures and Techniques, op. cit. supra note 10 at 21.
18.Villanova
TORFF, op.
cit. supra
noteWidger
16 at 308-310.
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the terms of collective bargaining agreements. 19 It thus arose as a
substitute for strikes and lockouts as devices for settling disputes over
rights within the terms of an established agreement. In accordance
with this, a no-strike-no-lockout pledge is complimentary to the grievance procedure with arbitration as the final step. The parties expressly
or implicitly agree not to strike or lockout over any dispute that may
be referred to the grievance procedure and arbitration. Without such
an understanding the grievance procedure would be ineffective, due to
the ability of either party to unilaterally revert to the use of relative
economic power, seeking to impose its position on the other.20 When
grievance arbitration is not provided, or when some grievance matters
are specifically excluded from the arbitration clause, relative economic
power remains as the arbitrament.
Grievance arbitration is also a substitute for legal action. Instead
of submitting disputes to a private proceeding, the parties could seek
to adjust differences over their contract in the courts. The use of
relative economic power initially, and subsequent development of the
grievance procedure, are interpreted as reflecting the unwillingness of
labor and management to submit these matters to the courts as contract disputes. The saving of time and expense through private proceedings are not the controlling factors. The courts and the parties
themselves have acknowledged that legal proceedings are not well
adapted to labor management relations.2 1 The grievance procedure is
then a means of making collective bargaining work.22 It has also been
observed as a social invention of the greatest importance for a democratic society wherein individuals and groups of employees can take
up their problems, seeking some means of redress within the work
environment by people most familiar with the nature of the problems.2"
Further, it is different from the negotiation process which is essentially
contract making, a legislative or policy-making process establishing
enforceable rights. The grievance procedure is basically a judicial or
compliance function because it is limited to disputes over these rights.24
Few collective bargaining agreements provide for resort to the
grievance procedure by employers. Most are drafted in language that
clearly specifies that the union or employees may file grievances and
carry them through the procedure, but are silent on the matter of
19. CHAMBERLAIN, COLLECTIVE BARGAINING, op. cit. supra note 5 at 97.
20. WITTE, op. cit. supra note 15, preface.
21. FR4IDIN, LABOR ARBITRATION AND TH COURTS 1 (1952).
22. Shulman, Reason, Contract, and Law in Labor Relations, 68 HARV. L. REv.
999, 1024 (1955).
23. Whyte, The Grievance Procedure and Plant Society, The Grievance Process,
11 Proceedings of a Conference at Michigan State University, (March 23-24, 1956).
24. CHAMBERLAIN, GRTEVANCE PROCEEDINGS
SIGHTS INTO LABOR'IssuEs 74-76 (1949).
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employer grievances. Indeed, many employers oppose contract provisions permitting them to process grievances through the procedure.
There are two views supporting this position.
One view holds that management-filed grievances are inconsistent
with the residual concept of management rights reflected in the retained
rights doctrine. Under this view, management has retained the right
to take whatever administrative action it deems proper; thus, there
exists no necessity for it-to file grievances. If any management actions
are considered contrary to the agreement, the union or employees
affected may seek redress through the grievance procedure.2 5
Another view results in the same type of relationship, but does not
follow the retained rights doctrine. Under this view it is held that
consistent with the nature of the work environment, the collective
bargaining relationship, and the development of the grievance procedure, management has the right of administrative initiative which
may be balanced against the right of employees and the union to
challenge it through the grievance procedure. This doctrine of administrative initiative is, therefore, considered as an essential element of
the relationship and generally precludes the necessity for management
2 6
to file grievances.
CRITICAL ISSUES IN THE GRIEVANCE PROCEDURE
The general nature and framework of the grievance procedure
has been described. Beyond these principles there are a number of
fundamental areas of disagreement. Specifically, the major issues include: the definition of a grievance; the retained rights doctrine and
the grievance procedure; the several approaches to grievance handling;
the development and use of a separate body of collective bargaining
law; the matters of arbitrability, jurisdiction and authority of the
arbitrator; and the nature of grievance arbitration and the role of the
arbitrator.
Definition of a Grievance.
A grievance has been defined as a dispute over the interpretation
or application of a collective bargaining agreement, or a dispute over
rights as opposed to a dispute over interests. This is a general definition applicable to any collective bargaining agreement embodying a
grievance procedure. A specific definition of a grievance is contingent
25. TORFr, op. cit. supra note
16 at 291-292.
26. George W. Taylor, Effectuating the Labor Contract through Arbitration,
The Profession of Labor Arbitration, ed. Jean T. McKelvey (Washington: BNA
Incorporated, 1957), pp. 31-33.
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upon the terms of a particular agreement; a grievance in this sense is
then whatever disputes the parties agree to have submitted to the
grievance procedure.
Many collective bargaining agreements that specifically define a
grievance use the following (typical) language. "Any dispute as to
the meaning, interpretation or the application of any provision of this
agreement shall constitute a grievance." 27
This definition is subject to two separate types of interpretation
and application itself. One view holds to a rigid definition, contending
that the contract is the absolute and complete embodiment of the intent
of the parties, and therefore, it becomes the only authoritative source
for setting forth the definition of a grievance. Under this view, a
grievance must specifically involve the interpretation, meaning, or application of the contract and its performance or non-performance. Thus
it is a strict, technical, and narrow approach based fundamentally on a
legal concept. The purpose of this approach is to limit the grievance
procedure from any possible expansion of the terms of the agreement,
and the genesis of this concept is traceable to business contract law. A
second view holds that the definition should be applied in a manner
which stresses the practicalities and nature of the collective bargaining
relationship and grievance arbitration as opposed to a commercial contract and arbitration thereunder. Thus this second view is looser, less
technical, and based primarily on the collective bargaining concept that
grievances are primarily disputes within a human relationship not
purely breaches of contract.
The broad approach to the definition of a grievance is also limited
to disputes over rights. However, this includes disputes directly involving the specific provisions of the agreement, disputes indirectly involving specific provisions of the agreement, and disputes involving an
implied provision or an implied collateral agreement. Thus, in this
approach, past policies and practices within the relationship, as well as
a pragmatic, rather than a solely contractual, concept of the nature of
a labor agreement are basic considerations in determining whether or
not a grievance exists. For example, the removal of a nurse, where
there is not a specific contractual requirement to hire a nurse, may be
a proper grievance matter under a contractual provision requiring the
firm to make reasonable provisions for safety. As another example, a
well established practice of payment of wages in cash rather than by
27.
(1956).
CRANe AND
HOFFMAN,
SUCCESSFUL
HANDLING
o
LABOR GRIEVANCtS
11
Also see pp. 6-16 for a full discussion of the various types of grievance
definitions.
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check might possibly be considered as an implied or collateral
agreement. 8
The Retained Rights Doctrine in Grievance Arbitration.
The issue of the retained rights doctrine is related to the narrow
view of the definition of a grievance. In applying this doctrine within
the framework of the grievance procedure it is held that any matter
not specifically limited in the agreement is unquestionably an exclusive
right of management. This is difficult to follow in its strictest sense
for it would result in few arbitration decisions against management,
and a frustration of the endeavor to settle disputes through the grievance
procedure. This point has been illustrated by analyzing the clause in
most agreements which provides that any discipline imposed by management must be "for cause." Under a rigid application of the retained
rights doctrine to this provision, management has merely agreed not
to take capricious disciplinary action. Thus whatever- the "cause," no
matter how slight, management retains the right to take disciplinary
action, however harsh. Only in cases where there is no "cause" at all
would an employee have a right of redress.2" It is doubtful whether
employees would voluntarily restrict their use of relative economic
power in exchange for such a limited method of review.
Since such an adherence to the retained rights doctrine is unworkable in grievance arbitration, it is not followed in this strict manner.
There are three possible types of grievance matters which reach an
arbitrator :30 (1) those involving conduct specifically denied or permitted by the agreement; (2) those which involve vague or ambiguous
language or a conflict between several clauses of the agreement; and
(3) those which involve matters on which the agreement is silent.
With regard to the first and third types no problem exists. The agreement itself covers number one and number three involves disputes over
interests which are not grievances. It is number two then on which
the issue of the retained rights doctrine is centered - matters involving
vague or ambiguous language or conflicting contract clauses.
Advocates of the retained rights doctrine refuse to consider the
merits of these matters, and rely on the usual statement in labor agreements that an arbitrator may not change, modify, or add to the expressed terms of the agreement. They claim that this view is the only
one which gives full recognition to the realities of the collective bargaining relationship. Moreover, they also contend that a different admin28. TROTTA, LABOR ARBITRATION 81-95 (1961).
29. Taylor, op. cit. supra note 26 at 158.
30. BERNSTEIN, ARBITRATION, INDUSTRIAL CONFLICT 307 (1954).
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istration of the agreement in day-to-day relationships and long range
planning would be impossible, that arbitration could not perform its
traditional role of developing standards for the parties to follow in
contract administration, that it is the parties' responsibility to draft
agreements in clear language, including and excluding whatsoever they
desire, and that this is not the function of an arbitrator, who must
necessarily do this when the retained rights doctrine is not followed.
Critics contend that the retained rights doctrine is an assertion
which workers who seek representation in collective bargaining have
never accepted; that the statement or understanding that an arbitrator
may not change, modify, or add to the terms of a collective bargaining
agreement developed, historically, to limit the authority of an arbitrator
to disputes over rights, thus preventing the grievance procedure from
being used as a vehicle for settling disputes over interests. It is further
stressed that when an arbitrator follows the retained rights doctrine,
without full consent of the parties, the arbitrator adds to the agreement
by imposing his concept of collective bargaining on the relationship.
They conclude that an arbitrator cannot perform his function under
either view without adding to an agreement, and stress that adherence
to the retained rights doctrine is not the mutual understanding of the
3
parties when they seek arbitration as a means of dispute settlement. '
Grievance Handling.
Section 9(a) of the Labor Management Relations Act provides
for legal protection of the right of an individual or group of employees
to present grievances to their employer and pursue final adjustment
without intervention of the union, as long as the union has an opportunity to be present at such adjustment and the manner of adjustment
is not inconsistent with the terms of the collective bargaining agreement
2
in effect.1
This provision for individual bargaining within the context of
collective bargaining is the law of the land and therefore the situation
within which the parties must conduct themselves. In developing a
grievance procedure, however, the parties can provide that all grievances be presented to the foreman through the union representative, or
that all grievances be presented by the aggrieved to the foreman for
possible further discussion with the union, or that either approach may
be taken by an employee and followed through the procedure in the
same manner. There is then an issue as to whether or not all grievances
are normally to be presented through the union.
31. Taylor, op. cit. supra note 26 at 158-160.
32. 29 U.S.C. § 159(a) (1958).
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One view is based on the concept of exclusive bargaining agent
under which the union bargains for all employees, both members and
non-members, and this, it is stressed, includes grievance negotiating.
It is also based on the premise that the union as well as individual
employees, due to its status, has an interest in grievances. Therefore,
all grievances are sought to be presented by the union, and in the
strict application of this principle any employee who feels aggrieved
would present the grievance through his shop steward or committeeman. This is further advocated as an aid in maintaining efficient operations - on the premise that the steward will tend to eliminate unfounded grievances and present valid ones which, at the same time,
will effectively release the foreman to attend to his operational duties.
A substantial number of firms object to having all grievances
presented first to the shop steward. They are not concerned primarily
with keeping a vestige of individual bargaining within the context of
collective bargaining, but conclude that due to the political nature of
the union, non-members or dissident members might have difficulty
getting grievances beyond the steward to the foreman. They also
point out that the shop steward is not a firm appointee and his ability
in grievance matters may not be very good, thus hindering the proper
administration of the procedure; also, a firm should not deter this
valuable line of communication and its proper functioning in the area
of grievance handling."3
There is also disagreement regarding the general technique or
method that is proper in handling grievances. It is well recognized that
employees have many types of individual problems not necessarily related to the terms of the employment relationship, that these matters
will be reflected in employee efficiency and productivity, and that many
of these dissatisfactions or complaints cannot be brought to union or
management attention under the traditional concept of a grievance as
a dispute over rights. Overall and individual production and efficiency
can be adversely affected due to the fact that not every employee dissatisfaction is expressed by him, that some are incapable of being
formally presented as grievances, and that these types of complaints
are, therefore, often disguised as grievances. Accordingly, the use of
skill in interviewing and situation thinking on the part of first line
supervisors has been encouraged, and an attempt has been made to
create an atmosphere that will not discourage the expression of dissatisfactions by employees.3 4 "What is being urged . .. is a clinical
33. Barkin, A Trade Unionist Appraises Management Personnel Philosophy, 38
Bus. REv. 59-64 (1950).
34. PIGORS AND MYERS,
HARV.
PERSONNEL
ADMINISTRATION:
A
POINT OF Virw
AND
A METHOD 242 (4th ed. 1961).
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approach to grievances and the grievance machinery - an approach
that views complaints through the functioning processes of shop behavior by which men are working together to turn out goods and
services.""5
In advocating the clinical approach 6 it is argued that the basic
status of the agreement continues. It is the first recourse for handling
and adjusting grievances and adoption of this approach does not change
the structure of the grievance procedure in any fundamental way. In
a positive sense the clinical approach places emphasis "upon the problems of treating grievances rather than upon the mechanics of accepting
or dismissing grievances. The agreement is utilized not to determine
what merit the grievance possesses or its right to consideration, but
to facilitate non-discriminatory consideration of all grievances."3 "
Where a complaint can be settled by application of the agreement, the
clinical approach advocates that this should be done and the matter
thereby concluded. However, where current disputes threatening relationships and production cannot be negotiated or adjusted in this manner, it is concluded that until the dissatisfaction underlying the complaint is also mitigated or adjusted the problem will remain. Consequently, it is further held by the clinical approach that the investigation of a complaint
should not be considered complete until these highly important
bodies of facts have been compiled . . . the evidence by which the
foreman or steward can decide whether the grievance submitted
to him presents a valid case within the terms of the agreement,
and .. .such data as may at least indicate the degree to which
factors of personality, feelings, sentiments, and
so on, underlie its
38
genesis or threaten to complicate its handling.
Development and Use of a Body of Collective Bargaining Law in
Grievance Settlements.
The desire of both of the parties to settle as many grievances as
possible at the first step, leaving the upper levels open for the settlement
of major issues, is self-evident in view of the time, costs, and possible
loss of bargaining power involved. It is noted that the great bulk of
dissatisfactions are settled in most shop relationships at the first step
which is a highly informal process. These settlements, which involve
substantial skill on the part of foremen and stewards, occur in face-toface contact between workers and/or stewards and foremen who know
35. SELEKMAN, LABOR
36. Id. at 75-110.
37. Id. at 89.
38. Id. at 91-92.
RELATIONS AND HUMAN RELATIONS
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each other fairly well, and who must continue to work together long
after the grievance at hand is settled. Such matters are often not fully
reported or recorded and are adjusted without adherence to legalism
and completely consistent interpretation of agreements.3"
Despite the mutual desire for expeditious settlement of grievances
at the first step, there are a number of varying political factors affecting
the accomplishment of this goal. The union may be desirous of building
up interest in an issue through the grievance procedure, looking toward
the next contract negotiation. A power struggle may exist between
the union and firm over union security, the wage level or structure,
or other issues, and this may be reflected in the manner grievances are
administered. Active union politics, factionalism within the union, or
the threat of a rival union can also be a factor. Although there are
other factors, it is not the purpose of this work to develop all the
aspects concerning union or firm politics which may be reflected in the
collective bargaining relationship and particularly the handling of
grievances; rather, suffice it to note the existence of these influences."
It is also recognized that the type of union-management relationship
that exists will be reflected in the grievance procedure. For example,
a cooperative relationship will tend to be reflected in less grievances and
a higher number of settlements at the first level, while an armed-truce
relationship will result in a greater number (and a higher proportion)
of grievances proceeding beyond the first step.
In an endeavor to settle grievances at the first step on an individual
basis, some stress adherence to established principles at all levels of
the grievance procedure and the use of prior decisions under an agreement as precedents. Another view holds that
a considerable body of substantive law relating to industrial relations has been built up by decisions of arbitrators, War Labor
Board, National Labor Relations Board, and other governmental
agencies. .
.
. [However] this statement is not literally true in
the same sense that court decisions make up the common law.
There is no doctrine of stare decisis. .
. But obviously, previous
well-considered decisions, if presented, will be persuasive though
not binding. Some labor contracts specifically provide that no
arbitration decision shall be binding as a precedent in future
disputes.4
Thus, although a body of generalizations has emerged, "these
generalizations have flexible application,"4 2 and "an arbitrator is not
39.
KENNEDY,
GRIEVANCE
NEGOTIATION,
40. Id. at 282-283.
41. UPDMGRAFF AND McCoy,
INDUSTRIAL
CONFLICT
ARBITRATION OF LABOR DISPUTES
280-291
(1954).
129 (1946).
42. Julius J. Manson, "Substantive Principles Emerging From Grievance Arbitration: Some Observations," Industrial Relations Research Association, Proceedings
of the Sixth Annual Meeting (Madison, Wisc., 1953), p. 137.
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bound to follow precedents in determining the merits of the matter
submitted to him, but follows his own judgment."4 The observation
that grievance settlement is not a "single, standard process, but a range
of processes that may vary with the enterprise and from case to case
within the same enterprise . . ."" is consistent with this approach.
Within this general framework of thought on the limited usefulness of substantive principles and prior decisions there is, however, a
recognized tendency to rely on prior settled disputes as part of a
standard operating procedure.
A sequence of decisions on basic substantive issues of contract
interpretation and application will result over a period of time
in the development of a body of principles that can be concretely
and meaningfully applied by the parties. Such private case law
within a particular relationship can serve to prevent grievances,
settle grievances informally, eliminate duplicatory arbitrations,
and head off flanking operations designed to escape the consequences-of an unpalatable earlier award.4 5
Thus, though rejected as a complete method of deciding disputes,
the use of prior decisions is viewed here as contributing to better
contract administration.40
Arbitrability and the Jurisdiction and Authority of the Arbitrator.
The question of the arbitrability of a specific issue is basically
whether or not the parties have agreed to make the arbitration process
available for disputes over the matter involved. Parties frequently
exclude disputes over production rate changes, work schedule changes,
job method changes, and many other topics. These matters are then
not arbitrable. The question of the jurisdiction of an arbitrator is
basically whether or not the arbitrator is empowered to hear a specific
dispute. Thus with regard to the aforementioned oft-excluded matters
the arbitrator is without jurisdiction to hear such disputes. The question of the authority of an arbitrator refers to the extent that he may
decide a dispute on its merits. An arbitrator may have jurisdiction to
hear a dispute, but limited authority with regard to making a settlement
of the matter.
47
43. Id. at 148.
44. SHULMAN, THE ARBITRATION PROCESS, READINGS IN LABOR ECONOMICS AND
INDUSTRIAL RELATIONS 249 (2d ed. 1956).
45. DAVEY, op. cit. supra note 8 at 150.
46. A full discussion of the principles which have become more or less settled
by means of substantive decisions is not within the scope of this work. The reader
is referred to. the arbitration reporting services.
47. JUSTIN, ARBITRABILITY AND THE ARBITRATOR'S JURISDICTION, MANAGEMENT RIGHTS AND THE ARBITRATION PROCESS 3-4 (1956).
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In another context, where an employer refuses to accept arbitration
of a dispute over whether or not the firm may properly contract out
maintenance work - relying on the position that the agreement is silent
on this matter and excludes from arbitration matters "strictly a function of management" - the issue of whether or not such dispute is
excluded from the grievance procedure involves a question of arbitrability.4" Further, where an employer refuses to arbitrate a dispute over
an injured employee's right to return to his old job after he had
received workmen's compensation benefits, claiming that this type of
dispute is not arbitrable under the labor agreement, the issue of whether
or not the arbitrator may properly decide the dispute over arbitrabilitv
involves a question of jurisdiction of the arbitrator." Finally, where
an employer refuses to comply with the arbitrator's award (ordering
the reinstatement of several employees) on the grounds that the arbitrator had not properly interpreted the contract, the issue of whether
or not the arbitrator could decide the merits of the dispute as he did
involves a question concerning the authority of the arbitrator."
These questions of arbitrability, jurisdiction, and authority become
interrelated in cases where a party is seeking to enforce the arbitration
clause of an agreement, to stay arbitration proceedings, or to set aside
an arbitrator's award. Court decisions are sometimes rendered on the
merits of the disputes for which arbitration is being sought or has taken
place, rather than on the specific issues of arbitrability, jurisdiction, or
authority. In a leading case a state court denied a union's suit to
enforce arbitration on the grounds that the dispute was not arbitrable
because the meaning of the agreement was beyond dispute. 5 When
an arbitrator goes beyond the jurisdiction, authority, or limits upon
arbitrable matters reposed in him by the parties, the courts will grant
redress. A controversy has existed, however, concerning whether or
not the court should review the merits of a grievance to decide a case
involving one or more of these matters.
Law suits involving issues of arbitrability, jurisdiction and/or
authority, have often been treated as concerning questions of jurisdiction over subject matter. This approach has its foundation in equating
grievance arbitration to commercial contract arbitration. Under commercial contract arbitration principles, where the arbitrator applies general principles of contract interpretation, it is both acceptable and desir48. United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574
(1960).
49. United Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960).
50. United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593
(1960).
51. International Association of Machinists v. Cutler-Hammer, Inc., 297 N.Y.
519, 74 N.E.2d 464 (1947).
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able for a court to decide the merits of a dispute which is also being
contested on the grounds of nonarbitrability or lack of jurisdiction or
authority in the arbitrator. All these matters are part of a judge's role
in commercial contract cases, and thus in doing this in arbitration disputes the court is merely performing the function of its substitute the arbitrator. Where arbitration is viewed as a substitute for legal
action, there exists no purpose in making distinctions among arbitra52
bility, jurisdiction, or authority.
Where this commercial contract approach is not followed, and
emphasis is on the concept of the process as a substitute for the use of
relative economic power, these matters become important. Under this
view the parties have established a private judicial process with their
own procedures and principles of application. The extent to which a
court may intervene to determine questions of arbitrability, jurisdiction,
or authority rests on the agreement of the parties to permit this, and
the substitution of a court decision on the merits of a dispute for that
of an arbitrator is completely inconsistent with the nature and design
of the process. Thus, it is held to be within the nature of grievance
arbitration that an arbitrator initially determine issues of the extent of
his own jurisdiction, the arbitrability of a specific dispute, and the
extent of his own authority. After an arbitrator has acted, unless the
parties expressly agreed otherwise, the aggrieved party may then challenge the award in proceedings to vacate. It is stressed, however, that
the court should decide the issue of arbitrability jurisdiction or authority, without going into the merits of the dispute itself."
Nature of Arbitration and Role of the Arbitrator.
Within the concept of grievance machinery as basically a judicial
or compliance function, grievance arbitration can be viewed primarily
as a legal process for interpreting and applying the agreement in a
purely contractual framework, as the judicial process within the industrial self-government created and perpetuated by the parties in bargaining, or as a continuation of the bargaining process beyond the conclusion of negotiations and the signing of an agreement. The latter two
are easily distinguished from the legalistic approach, but the line of
demarcation between these two views is not exactly precise. Under
both, the use of mediation techniques within the process of arbitration
is likely, but the legalistic approach rejects this entirely.
52. United Steelworkers v. Warrior and Gulf Navigation Company, 363 U.S.
574, 578 (1960).
53. JUSTIN, op. cit. supra note 47 at 8-9.
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In the legalistic approach to grievance arbitration, the commercial
contract nature of the process is stressed and the role of the arbitrator
is conceived as that of a judge. This view is succinctly and concisely
reflected in the following statements:
There is one point that I wish to emphasize above all others
and that is that arbitration is a judicial process. The arbitrator
sits as a private judge, called upon to determine the legal rights
and economic interests of the parties as these rights and interests
are proved by the record made by the parties themselves. It is my
view of arbitration that an arbitrator is bound entirely by the
record presented to h-. in the form of evidence and agreement at
the arbitration hearing. His job is the same as that performed
by a state or federal judge, called upon to decide a case between
party litigants.54
An arbitrator is bound by the language of a contract, and
he has no right to reform or amend it. . . .The arbitrator should
always be bound by the legal meaning of the contract, and by the
rules of contract law. The legal rules of construction must be
applied by him as an aid in determining what the contract means.5'
My chief criticism of labor arbitration as it functions in many
cases is that too few arbitrators have grasped the full significance
of arbitration as a judicial process. Too many arbitrators still
take judicial notice of interests and facts not established in the
record of the hearing. Too many arbitrators still apply the principle of compromise in their decisions. I think I understand their
good intentions and motives, and their desire to please both sides,
at least a little bit. But when they yield to the principle of compromise they wrong not only both parties to the dispute, but they
impair the effectiveness of arbitration as a judicial method of
settling labor disputes .... 56
In the industrial self government approach to grievance arbitration
the private and voluntary nature of the process in which the parties
themselves determine the extent of the type of arbitration they desire
is stressed as the central theme. It is significant to note that under the
industrial self government approach the role of the arbitrator is flexible
with the desires of the parties. An agreement with a provision for
grievance arbitration is considered to be the fulfillment of the goal of
the parties to self-regulate their entire employment relationship and to
assure a continuity of the relationship implicit in the collective bargaining agreement. The parties themselves, it is indicated, voluntarily and
mutually agree on the power and function of the arbitrator; they fix
54. BARKF AND KERR,
55. Id. at 490.
56. Id. at 489-490.
UNIONS,
MANAGEMENT
AND THE PUBLIC 489
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the rules and determine the kind of arbitration they will get in this
private judicial process, not the arbitrators (nor any other source)."
A proper conception of the arbitrator's function is basic. He
is not a public tribunal imposed upon the parties by superior authority which the parties are obligated to respect. He has no
general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government
created by and confined to the parties.5"
Basically, the arbitration process is a part of a system of industrial self-government created and developed by labor and management. That basic and fundamental concept has been adapted
to substantial segments of our economic life by companies and
unions. For such a system to work and achieve its potentialities,
arbitration is an indispensable instrument. Attempting to develop
a system of industrial self-government without an arbitration
facility is roughly similar to political self-government trying to
operate without a judicial system whereby resolved differences
are determined only by conflict or surrender.59
A system of arbitration as the terminal point in the grievance
procedure is essential for the functioning of industrial self-government. It not only provides for a final solution of such disputes,
which is very important, but it is also a system within the control
of the parties. The judge who determines the dispute is selected by
them and they may agree and stipulate to the powers which he
will wield. Thus they have fashioned their own legislation and
have created their own scheme of administration.6 °
Under the view of the grievance procedure as a judicial part of
the continuous process of collective bargaining, the meeting of minds
aspect of collective bargaining is stressed and the role of the arbitrator
is presented as one who seeks to get the parties to agree on a solution
to the dispute presented. The basic tenets of this concept of grievance
arbitration are reflected in the following statement:
The fundamental nature of grievance arbitration derives from
three fundamental characteristics - (1) it is complementary to
the no-strike no-lockout; (2) it is an agreement to arbitrate future,
unknown disputes; and (3) it invariably involves agreementmaking as well as agreement administration.6
57. Justin, Arbitration Under the Labor Contract - Its Nature, Function and
Use, Personnel, (January, 1951), pp. 286-300.
58. Shulman, Reason, Contract and Law in Labor Relations, 68 HARV. L. REv.
999, 1016 (1955)..
59. Paul N. Guthrie, Arbitration and Industrial Self-Government, The Arbitrator and the Parties, ed. Jean T. McKelvey (Washington, D.C.: BNA Incorporated,
1958), pp. 7-8.
60. Id. at 12.
61. Taylor, op. cit. supra note 26 at 21.
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...[T]hat a sharp line of distinction can be drawn between
agreement-making and agreement administration... isan erroneous notion. The labor contract is, in most particulars, no more
than a skeleton understanding. The agreements there embodied
frequently have to be given substance - they have to be amplified
in grievance settlement - before a complete meeting of minds
is achieved. 2
Within this view of arbitration as part of the continuous process
of collective bargaining, the "central problem of grievance arbitration
is whether, at the final step in grievance settlement, a meeting of minds
or mutual acceptance should be a vital criterion." 63 The arbitrator
holds a highly professional position under this view.
An arbitrator will not perform his function properly unless
he is alert to the possible use of mediation methods under certain
conditions. An arbitrator is given a great power and a grave
responsibility by parties who voluntarily agree to accept his judgment as binding upon them. If either disputant specifically requests
the arbitrator to exercise his own judgment without any attempt
at mediation, he has an unmistakable obligation and authority to
do so. In the absence of a specific authorization of this kind, the
arbitrator may well conduct himself in conformance with the
principle that a reasonable restraint in the use of power is expected
of him.
Unless the parties specifically indicate a preference for a
decision instead of an agreement to settle their differences, it is
fair to assume that a meeting of minds is the best possible solution
of the case which an arbitrator can bring about. If both parties
show an interest in arriving at an agreement, the arbitrator is
duty bound to assist in that endeavor. Under these conditions,
an arbitrator's power to order a settlement is best used when it
is directed toward mediating an agreement between the parties.
In conformance with these principles, an arbitrator may be looked
upon as a mediator with an unusual status. He is in an extremely
good position to assist in a meeting of the minds because of his
reserve power to issue a decision. A decision must issue, of course,
if no agreement is forthcoming. 4
Proponents of this view further state that disputants frequently
prefer this technique, and that parties do not desire arbitration until
every effort to secure a meeting of the minds has first been made.6 '
It is also held that two essential defects of the legalistic view on arbitration are that it embodies some part of the fatalistic idea that labor
62.
63.
64.
65.
Id. at 26.
Id. at 39.
TAYLOR, GOVERNMENT REGULATION OF INDUSTRIAL RELATIONS
Id. at 137, n.5.
136-138 (1948).
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REVIEW
and management differences are irreconcilable, and that the parties
know more about their affairs than any outsider. 6
In the adoption of the use of mediation within the context of
arbitration the conclusion is that the parties have more to gain by
removing the issue from the limitations of the contract and widening
the scope of the arbitration. 7 Use of mediation is also based on the
notion that the settlement of grievances relates to disputes over the
terms of a skeletal, incomplete and/or inconsistent agreement, and
therefore "involves not merely the application of clear and unmistakable
agreement terms to individual cases, but, particularly in the early stages
of a relationship or as it depicts new terms added to an old contract,
is also related to a completion of the agreement of the parties." 8
Where an arbitrator functions as a mediator with reserve power to
render a decision he is sometimes called or designated impartial chairman rather than arbitrator, umpire, or referee, as these terms connote
the primary legalistic rather than mediative role.69 It is also generally
accepted that ad hoc arbitration is inadequate when using mediation
techniques within arbitration except for cases "which do not lie at the
heart of the parties relationship, which are not symptomatic of any
deeper trouble or pregnant with serious implications for the parties'
future, whichever way the decision goes." 70
A deterrent to greater use of mediation within the process of
grievance arbitration is that no matter how compelling the logic of
mediation, the arbitrator inevitably runs a risk of failure in attempting
it. Within the processes of mediation, the mediator must necessarily
express opinions and judgments on the relative merits of the respective
shifting positions of the parties. Thus unsuccessful mediation complicates his effectiveness as an arbitrator on the same issue, for he
may have to render a decision on the merits of the case under the
agreement in a manner inconsistent with the position he took as a
mediator.7 1 A further deterrent to the use of mediation within arbitration is the possible tendency of the parties to take more cases to arbitration -
seeking mediation and a better result
-
instead of settling
the disputes themselves at the lower levels of the grievance procedure.
When the legalistic approach to grievance arbitration, together
with a rejection of mediation techniques within the arbitration process
66. Id. at 137, n.6.
67. BERNSTEIN, op. cit. supra note 30 at 311-312.
68. Taylor, op. cit. supra note 26 at 39-40.
69. Simkin and Kennedy, Arbitration of Grievances, (U.S. Department of Labor,
Division of Labor Standards Bulletin No. 82; Washington, D.C.: U.S. Government
Printing Office, 1946), pp. 5-10.
70. SHULMAN, op. cit. supra note 44 at 249-250.
71. BERNSTEIN, op. cit. supra note 30 at 312.
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is adopted, the conclusion is that this will force the parties to: attempt
to reach agreement themselves before resort to arbitration; write more
complete agreements; and, reduce the number of disputes that would
otherwise be referred to an arbitrator.
A loose construction permits modification by interpretation
.. . when the contract is relegislated once a year, .
.
. loose con-
struction is not necessary to keep it in line with changing circumstances. A strict interpretation also leads to certainty and consistency. If a loose approach is used, then the question becomes
how loose and in what direction. This approach would lead to a
greater use of arbitration than desirable, as each party might
seek to gain an advantage not obtained through the collective
bargaining process itself.72
Thus the rationale of the legalistic approach is that it will make arbitration (the substitute for the strike) equally as frightening as the strike
and thereby force the parties to take fewer disputes to arbitration, to
negotiate more complete contracts, and to settle disputes at the lower
steps in the grievance procedure.
THE GRIEVANCE
PROCEDURE AND
SUPREME
THE UNITED STATES
COURT
The Grievance Procedure Under the Marketing, Governmental, and
Management Theories.
The marketing theory views collective bargaining as the purchase
and sale of labor, essentially a contractual relationship: the collective
bargaining agreement permanently fixes the terms and conditions of
employment for its duration; and, the grievance procedure is a vehicle
for bringing questions of interpretation and application of the contract
to the attention of management for settlement within the established
terms.
This theory adopts a narrow contractual definition of a grievance
and the retained rights doctrine. In the area of grievance handling,
the filing of grievances by individual employees at the first step, rather
than through the shop steward, is strongly supported. And, while
recognizing that the grievance machinery can operate as a safety valve
for the expression of employee dissatisfactions and as a line of communication to management, technical aspects, rather than the techniques
to be used by shop stewards and foremen, are stressed. The exercise
of unilateral decision making by management and restriction of the
use of the grievance procedure are sought to be established and main72. CHAMBERLAIN, op. cit. supra note 24 at 85.
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tained through contractual devices. Thus the application of general
contract interpretation principles is implicit, and the development of a
separate body of collective bargaining agreement law is inconsistent
with the basic tenets of this theory. The issues of arbitrability, jurisdiction, and authority of the arbitrator are all generally considered and
treated as questions of jusisdiction over the subject matter of the contract, and the courts are viewed as the final arbiter of the meaning of
the contract regarding these and all other issues. Finally, grievance
arbitration is considered as essentially a legal process of contract interpretation, and the role of the arbitrator is basically the same as that of
a judge, who applies contract law principles without regard to the
mutual acceptability of his decisions.7 3
The governmental theory views collective bargaining as a system
of industrial self-government: legislative province is vested primarily
in the negotiation process wherein the parties regulate the employment
relationship and embody the terms and conditions in a labor agreement;
the executive function is performed by management in enforcing and
adhering to the agreement and in exercising its right of administrative
initiative; the judicial function is performed through the grievance procedure wherein respective rights and duties are enforced; and the grievance procedure also has legislative aspects as the settlements established
therein add to the terms and conditions of the employment relationship
beyond the labor agreement.
This theory in stressing the private self-government aspect of the
grievance procedure generally describes a grievance as whatever the
parties themselves desire; however, the traditional use of the grievance
procedure for disputes over rights dominates. The theory adheres to
the broad definition of a grievance which includes disputes over implied
rights flowing from the total employment relationship, as well as disputes involving matters set forth in the agreement. The retained rights
doctrine is rejected. The presentation and pursuance of grievance
settlement by individual employees directly with management, rather
than through the union, is considered to be inconsistent with the basic
status of the union as an institution and representative for all the employees. Further views on the matter of grievance handling include a
recognition of the need for qualified union representatives, foremen
with the skill and authority to settle grievances, and a grievance machinery geared to expeditions and final settlement of all disputes. Under
this theory the judicial nature of the grievance procedure requires that
prior settlements within a particular relationship constitute a body of
73. HILL AND HOOK, MANAGEMENT
used as the basis of these conclusions.
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AT THE BARGAINING
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collective bargaining law supplementing the legislative enactments of
the negotiations. However, due to the legislative aspect of the grievance procedure, these prior decisions are subject to adjustment, and
serve often as guides toward agreement rather than principles to be
automatically applied. In a system of self-government with its own
private judicial process as it exists under this theory, the issues of
arbitrability, jurisdiction, and authority of an arbitrator are properly
submitted to the private arbitrator; the determination of these issues
by a court without first using the private judicial process is contrary
to the basic tenets of the theory. The role of an arbitrator is basically
to interpret and apply the labor agreement in the light of the total relationship and thus, rigid contract principles are inapplicable. Due to
the understanding of the parties regarding the nature of the relationship, the loose manner of framing labor agreements, and the agreement-making aspects of the grievance procedure, the use of mediation
techniques within arbitration are acceptable where the parties understand and desire this result. 4
The management theory regards collective bargaining as a method
of business management in the area of employee relations. It is basically
a functional relationship wherein the union joins with management in
reaching decisions on matters of mutual interest. The agreement is
regarded as a set of administrative standards providing guidance in
areas of managerial decision making, and the grievance procedure constitutes the judicial and compliance machinery within a collective
bargaining relationship.
There are not any basic differences regarding the nature and
operation of the grievance procedure under the governmental and
management theories,75 both reject adherence to legalistic and commercial arbitration principles on all the critical issues identified. This
is a reflection of the fact that the two theories do not present wide
areas of basic disagreement, but rather differences of emphasis by
each of the two representative parties in collective bargaining. The
management theory has been previously described herein as the
adaption of the governmental theory to a method of management
decision-making and administration. The three theories of collective
bargaining thus reflect two concepts regarding the nature of a grievance procedure, and the inquiry regarding which theory of collective
bargaining has been followed by the United States Supreme Court
74.
GOLDEN
AND
RUTTENBERG,
THE
DYNAMICS
(1942), chiefly used as the basis of these conclusions.
OF
INDUSTRIAL
DEMOCRACY
75. CHAMBERLAIN, THE UNION CHALLENGE TO TMANAGEMENT CONTROL
(1948),
chiefly used as the basis for these conclusions.
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can be expressed in terms of whether or not the marketing theory or
government theory prevailed.
The Law and the Grievance Procedure.
The circumstances under which these theories became significant
to the work of the United States Supreme Court lies in the historical
and contemporary role of state and federal courts with respect to labor
arbitration agreements and labor arbitration.
The judicial review of labor arbitration agreements occurs in
several types of cases. A party may seek an order: (1) to stay the
arbitration proceedings; (2) to have an award vacated or modified;
(3) to enforce an arbitration award; or (4) to compel arbitration.
Under the common law either party may repudiate or withdraw
from arbitration at anytime prior to the issuance of an award. This
is based on the theory that consent must persist throughout the process,
coupled with the fact that an executory agreement to arbitrate future
contract disputes constitutes a threat to the traditional jusisdiction of the
courts over such contractual matters. This position has continued and
the common law still applies where there exists no statute expressing
the contrary. However, many states have enacted legislation to enforce
contracts involving agreements to arbitrate both present and future
disputes, with some states limiting the relief to present disputes. 6
Moreover, at common law and under the several state statutes, courts
77
will accept jusisdiction to enforce or vacate an arbitration award.
The United States Arbitration Act,7 8 which is applied in the federal courts, also modifies the common law regarding agreements to
arbitrate, and provides for enforcement and modification or vacating
of arbitration awards. This statute has been held inapplicable to
labor agreements and labor arbitration. 79 However, in the case of
Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957), the
United States Supreme Court ruled that agreements to arbitrate future
labor disputes are enforceable under Section 301 (a) of the LaborManagement Relations Act of 19470 which provides that "Suits for
violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined
in this chapter .
. .,
may be brought in any district court of the United
States having jurisdiction of the party, without respect to the amount in
controversy or without regard to the citizenship of the parties."
76.
ELKOURI AND ELKOURI,
How
ARBITRATION WORKS
23-25 (1960).
77. FREIDIN, op. cit. supra note 21 at 31-46.
78. 61 STAT. 669 (1947).
79. Pennsylvania Greyhound Lines v. Amalgamated Assn., 193 F.2d 327
Cir. 1952).
80. 29 U.S.C. § 185(a) (1947).
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State courts generally consider labor arbitration as undistinguishable from commercial arbitration. In the review of an arbitration agreement or award under this concept (as previously noted), a court may
properly interpret the provisions of the contract which the parties
agreed to arbitrate. The application of this view to labor arbitration
is known as the Cutler-Hammer doctrine."' In the federal courts the
Lincoln Mills decision held "that the substantive law to apply in
suits under § 301 (a) is federal law, which the courts must fashion
from the policy of our national labor law," 2 and the general policy is
one of promoting industrial stabilization through the collective bargaining agreement and the grievance procedure.8 3 Subsequently, in
three simultaneous decisions involving section 301 (a) and grievance
arbitration the Court moved toward this goal. These same cases were
used as illustrations in the discussions on the matters of arbitrability,
jurisdiction, and the authority of an arbitrator. The case of United
Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S.
574 (1960) involved a dispute over the arbitrability of a grievance.
The case of United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 (1960) involved the central issue of whether
an arbitrator or a court has jurisdiction to decide the issue of arbitrability initially. The case of United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960) involved a question
concerning the basic nature of the authority of an arbitrator in making
his award. The United States Supreme Court rejected the CutlerHammer doctrine in these decisions, and substantially clarified the
federal law concerning grievance arbitration. In order to accomplish
this result the Court had to consider the nature of the grievance procedure in its entirety and to adopt a framework of reference consistent
with one of the theories of collective bargaining.
The United States Supreme Court and A Theory of Collective
Bargaining.
The governmental theory was expressed by the Court in describing
the fundamental nature of collective bargaining. The Court stated:
A collective bargaining agreement is an effort to erect a
system of industrial self government. When most parties enter
into a contractual relationship they do so voluntarily, in the sense
that there is no real compulsion to deal with one another, as
opposed to dealing with other parties. This is not true of the labor
81. Cutler-Hammer Inc. v. International Assn. of Machinists District 15 Local 402,
CIO,297 N.Y.519, 74 N.E. 2d 464 (1946).
82. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957).
83. Id. at 453-454.
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agreement. The choice is generally not between entering or refusing to enter into a relationship, for that in all probability preexists the negotiations. Rather it is between having the relationship governed by an agreed-upon rule of law or leaving each and
every matter subject to a temporary resolution dependent solely
upon the relative strength, at any given moment, of the contending
forces.8 4
A review and analysis of the many critical aspects of the grievance procedure and labor arbitration followed; these decisions reflect a rather
comprehensive discussion of this entire topic.
The broad definition of a grievance was adopted. In arriving at
this result the Court noted that "The mature labor agreement may
attempt to regulate all aspects of the complicated relationship, from
the most crucial to the most minute over an extended period of time." 5
However, due to the necessity of having to reach agreement, the
extent of the subject matter involved, and the need for a concise and
lucid written document, most labor agreements do not meet this
standard.
Gaps may be left to be filled in by reference to the practices
of the particular industry and of the various shops covered by the
agreement. Many of the specific practices which underlie the
agreement may be unknown, except in hazy form, even to the
negotiators. . . But the grievance machinery under a collective
bargaining agreement is at the very heart of the system of industrial
self-government . .. The processing of disputes through the
grievance machinery is actually a vehicle by which meaning and
content are given to the collective bargaining agreement."s
Thus the Court concluded that "[a]part from matters that the
parties specifically exclude, all of the questions on which the parties
disagree must therefore come within the scope of the grievance and
arbitration provisions of the collective agreement,""7 and specifically
ruled that "[i]n the absence of any express provision excluding a
particular grievance from arbitration, we think only the most forceful
evidence of a purpose to exclude the claim from arbitration can prevail,
particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad." 8
The retained rights doctrine is implicitly rejected in this broad
definition of a grievance. The matter of inherent reserve rights in
84. United Steelworkers of America v. Warrior and Gulf Navigation Co., 363
U.S. 574, 580 (1960).
85. Id. at 580.
86. Id. at 580-581.
87. Id. at 581.
88. Id. at 584-585.
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management was also specifically rejected. "A collective bargaining
agreement may' treat only with certain specific practices, leaving the
rest to management but subject to the possibility of work stoppages." 9
Further, management rights or matters " 'strictly a function of managenent' must be interpreted as referring only to that over which the contract gives management complete control and unfettered discretion."9
The matter of handling grievances was not specifically discussed.
The right of an individual employee to pursue the settlement of his
grievance has been noted. The role of the participants at the various
steps in the procedure and the policy to be implemented was not reviewed. However, the rejection of a completely legalistic approach
in the handling of grievance is a natural conclusion flowing from the
Court's position on the other issues previously and subsequently discussed. Also, the observation that "even frivolous claims may have
therapeutic values of which those who are not a part of the plant environment may be quite unaware. ..,"1 is without quarter in the legalistic
approach to grievance handling.
The existence of a separate body of collective bargaining agreement law was recognized. This is consistent with the acceptance of
the broad definition of a grievance and rejection of the retained rights
doctrine. In taking this position the Court stated that "[t]he collective
agreement covers the whole employment relationship. It calls into being
a new common law - the common law of a . .. particular plant."92
Further, the inefficacy of a labor agreement to serve as the sole basis
of the relationship was expressed by reference to an authorative observation that, "[o]ne cannot reduce all the rules governing a community
like an industrial plant to fifteen or even fifty pages. Within the sphere
of collective bargaining, the restrictional characteristics and the governmental nature of the collective-bargaining process demand a common
law of the shop which implements and furnishes the context of the
agreement" (Archibald Cox, "Reflections Upon Labor Arbitration,
72 Harvard Law Review 1482, 1419 1959)."" These factors coupled
with the acceptance of the grievance procedure as part of the continuous
process of collective bargaining wherein a particular agreement derives
meaning and content, compels the development of a separate body of
law with aspects of both uniform and flexible applicability.
89. Id. at 583.
90. Id. at 584.
91. United Steelworkers of America v. American Manufacturing Co., 363 U.S.
564, 568 (1960).
92. United Steelworkers of America v.Warrior and Gulf Navigation Co., 363
U.S. 574, 578-579 (1960).
93. Ibid.
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The matters of arbitrability, jurisdiction, and authority of an
arbitrator, as noted, were the principal issues of the cases. In the case
of the United Steelworkers v. Warrior & Gulf Navigation Co. it was
held that traditional hostility of the courts toward arbitration is not
applicable to labor arbitration. The Court concluded that matters not
specifically excluded from the scope of an agreement are arbitrable.
"An order to arbitrate the particular grievance should not be denied
unless it may be said with positive assurance that the arbitration clause
is not susceptible to an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage." 4 In the case of
United Steelworkers v. American Manufacturing Co., the Court took
a broad view of the jurisdiction of an arbitrator. It was held that
"[t]he function of the court is very limited when the parties have
agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract."95 The case further held that "[t]he courts, therefore, have no
business weighing the merits of the grievance, considering whether
there is equity in a particular claim, or determining whether there is
particular language in the written instrument which will support the
claim." 6 In the case of United Steelworkers v. Enterprise Wheel and
Car Corp. the Court, in considering the question of the authority of
an arbitrator, ruled that an arbitrator's award is enforceable where it
draws its essence from the collective bargaining agreement, and is not
reversible on the grounds the court disagrees with the award. "It is the
arbitrator's construction which was bargained for; and so far as the
arbitrator's decision concerns construction of the contract the courts
have no business overruling him because their interpretation of the
contract is different from his." 97
The nature of grievance arbitration and the role of the arbitrator
was reviewed in detail:
The grievance procedure is ...
a part of the continuous collective
bargaining process. It, rather than a strike, is the terminal point
of a disagreement.
The labor arbitrator performs functions which are not normal
to the courts; the considerations which help him fashion judgments .may indeed be foreign to the competence of courts.
94. Id. at 582-583.
95. United Steelworkers of America v. American Manufacturing Co., 363 U.S.
564, 567-568 (1960).
96. Id. at 568.
97. United Steelworkers of America v. Enterprise Wheel and Car Corp., 363
U.S. 593 599 (1960).
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"A proper concept of the arbitrator's function is basic. He is
not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general
character to administer justice for a community which transcends
the parties. He is rather part of a system of self-government
created by and confined to the parties." [Schulman, Reason, Contract and Law in Labor Relations, 68 HARV. L. REV. 999, 1016
(1955)].
The labor arbitrator's source of law is not confined to the
express provisions of the contract, as the industrial common law
- the practices of the industry and the shop - is equally a part
of the collective bargaining agreement although not expressed in
it. The labor arbitrator is usually chosen because of the parties'
confidence in his knowledge of the common law of the shop and
their trust in his personal judgment to bring to bear considerations
which are not expressed in the contract as criteria for judgment.
The parties expect that his judgment of a particular grievance will
reflect not only what the contract says but, insofar as the collective
bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of
the shop, his judgments whether tensions will be heightened or
diminished. For the parties' objective in using the arbitration
process is primarily to further their common goal of uninterrupted
production under the agreement, to make the agreement serve their
specialized needs. The ablest judge cannot be expected to bring
the same experience and competence to bear upon the determina98
tion of a grievance, because he cannot be similarly informed.
The governmental theory of collective bargaining thus completely
prevailed. The nature and purpose of collective bargaining was described as the establishment of a system of industrial self-government.
The grievance procedure with arbitration as the final step was identified
as the judicial arm of the continuous bargaining process. Consistent
positions were expressed on each of the critical aspects of the grievance
procedure. The theoretical framework then served as the basis upon
which the United States Supreme Court distinguished commercial arbitration from labor arbitration. This federal policy and substantive
principles of federal law are also applicable in suits under section 301
filed in state courts. 99
The full import of this reliance on a theory to decide a specific
legal issue has, perhaps, not yet been experienced. The cases at hand
were contract matters brought under section 301. The impact of the
decisions on the total process of collective bargaining is an open ques98. United Steelworkers of America v. Warrior and Gulf Navigation Co., 363
U.S. 574, 581-582 (1960).
99. Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v.
Lucas Flour Co., 369 U.S. 95 (1962).
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tion. The Labor Management Relations Act of 1947 provides that
it is an unfair labor practice for an employer to refuse to bargain
collectively with the certified representative of his employees, °° and
an unfair labor practice for a certified labor organization to refuse to
bargain with an employer.' 0 ' For purposes of enforcing these mandates,
collective bargaining is defined as
the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms
and conditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by
either party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession.10 2
It is significant that all three theories of collective bargaining are
applicable under this definition.
There will be many matters arising under this definition that can
be resolved only by applying a theory of collective bargaining - questions concerning the basic nature of a process, the proper role of a
union as exclusive bargaining agent, or the rights of an employer in
dealing with employees in the process. Thus the acceptance of the
governmental theory with regard to the grievance procedure raises a
question concerning the extent to which this theory will be followed
by the United States Supreme Court in dealing with new and previously
settled issues over the duty to bargain.
100. 61 Stat. 141 (1947), 29 U.S.C. § 158(a) (5) (1958).
101. 61 Stat. 141 (1947), 29 U.S.C. § 158 (b)(3)(1958).
102. 61 Stat. 142 (1947), 29 U.S.C. § 158(d) (1958).
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